—Jesse Hartery will be a Law Clerk at the Supreme Court of Canada during the 2020-2021 term. He is the recipient of the 2019 Ronald L. Watts Award from the International Association of Centres for Federal Studies.

Territory and Power in Constitutional Transitions brings together an impressive group of scholars to evaluate how
political mobilization, constitution-making processes, and constitutional
design interact in constitutional transitions in which territorial cleavages
are politically salient. The ability to draw comparative lessons from a broad
range of case studies strengthens the value of this book for scholars and
practitioners alike.

The first seventeen chapters consist of case studies of Bolivia,
Bosnia and Herzegovina, Cyprus, Ethiopia, India, Iraq, Indonesia, Kenya, Nepal,
Nigeria, the Philippines, South Africa, Spain, Sri Lanka, the United Kingdom,
Ukraine, and Yemen. Interestingly, each chapter includes a section on “Lessons
Learned”. As a result, useful conclusions can be drawn before getting to the
last three chapters.

In her chapter, Cheryl Saunders focuses on constitution-making processes. She emphasizes the importance of process in sustaining constitutions over the long-term (330). This chapter is rightly concerned with promoting processes that are inclusive and driven by local actors. In doing so, Saunders suggests that international involvement should be limited to “offering knowledge and insights from experience elsewhere in a form that facilitates local choice” (347).

The chapter also includes a section on postponement techniques, with
Saunders noting that they should be included “with an eye to any potential for
unexpected judicial interpretations” (349). In other words, postponement can be
useful, but key actors should be careful when turning to such techniques.
Clarity on important issues is crucial in order to limit the ability of courts
to subvert the compromise.

In his chapter, Tom Ginsburg focuses on constitutional design. He notes that federalism is an “important part of the toolkit”, while explaining how useful special autonomy can be in certain circumstances (360-63, 372). Ginsburg then emphasizes two points which are particularly noteworthy: (1) the need to ensure sub-unit representation at the centre (360, 363-67); and (2) the importance of mechanisms for constitutional monitoring and enforcement (352-53, 369-72).

While guaranteeing a level of autonomy is usually seen as important
in ensuring the success of a transition, there is no doubt that living together
in peace requires a level of shared rule.
Ginsburg is right to point out that representation in central institutions
binds the regions together and gives them a stake in national decision-making.
This is a defining characteristic of the federal principle. He also notes that
there must be guarantors in place to ensure that “significant deviations” from
the constitutional contract are “punished” (352). Here, he focuses on the role
of courts and international institutions in enforcing the constitutional
contract. While Ginsburg addresses the role of sub-units at the centre and
constitutional enforcement separately, they are, in my view, interrelated, as
will be outlined below.

In their chapter, the editors George Anderson and Sujit Choudhry marry the central themes of the book through an extensive analysis. They first canvass the variables that define constitutional moments: (1) political geometry – that is, not only the existence of a territorial cleavage, but also the intensity, internal coherence, and durability of group identities that will have an impact on constitutional change, and the need for political entrepreneurs capable of effective mobilization; (2) the antecedent means of political engagement – that is, whether the political actors have chosen peaceful and institutionalized politics or extra-legal and violent action; and (3) the relative political power of existing governments, territorially mobilized groups, and external powers (379-90). They go on to explain how these variables shape constitution-making processes and the relevant design options.

The most valuable part of this chapter is the section on constitutional design options. The editors discuss the three main options, which are evidently dependent on the underlying political geometry (412-24). They acknowledge that adopting a federal model does not guarantee success, but they contend, as does the scholarship responding to Philip Roeder’s arguments, that successful accommodation without some form of multi-level governance structure is difficult in practice (414). They do, however, take the position that highly devolved federalism with a consociational central government should be avoided, except in exceptional circumstances, given its tendency to harden ethnic identities (421; Ginsburg, 357).

One point stands out from the analysis. While upper chambers are generally considered an important element of shared rule,the editors explain that the design of upper houses was a “secondary issue” in many of the constitutional transitions studied in the book (418-19). This is somewhat surprising given that the structure of the central legislature can be key, especially when courts fail to play their role in protecting the constitutional contract. As Nicholas Aroney and John Kincaid have explained, the trend in mature federations is for courts to adopt a centralizing interpretation of their constitutions.[1] A more inclusive central legislature (with an upper house composed of members chosen by the executive or legislative branches of the sub-units) can therefore serve as a more robust political safeguard of federalism.

It must be noted that the book does not include a discussion of “personal federalism” as a potential tool in managing diversity. Considering this issue in-depth was beyond the scope of this already thorough analysis of constitutional transitions. The editors rightly explain that while multi-level governance may accommodate demands for autonomy it may also subject minorities to the tyranny of the sub-unit majority. They briefly list some of the ways such peril can be mitigated (415, 417; Ginsburg, 364). Beyond the importance placed on bills of rights, this concern can be addressed by departing from the classic territorial model in accommodating culturally salient cleavages.[2]

For example, while Canada does not currently go as far as Belgium, a
type of personal federalism exists in the education context.[3] In Mahe v. Alberta, [1990] 1 SCR 342, the
Supreme Court noted that, where the numbers warrant, s. 23 of the Canadian Charter of Rights and Freedoms
grants minority language parents a right to management and control over the
educational facilities in which their children are taught. This model may prove
useful in countries in which a group is not large enough to warrant its own
sub-unit. As the editors point out, however, a lack of effective enforcement
mechanisms in the latter case may render protections of this nature weak in
practice (415).

In sum, this book makes an important contribution to comparative scholarship. Its broad and nuanced analysis will undoubtedly be useful to those interested in multi-level governance as a tool for conflict resolution.

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